TCPA Fax Advertisement - Klein Moynihan Turco LLP

Second Circuit Holds Market Research Fax Not a TCPA Advertisement

The Telephone Consumer Protection Act (“TCPA”) restricts the sending of certain fax advertisements to non-consenting consumers and businesses. Recently, the New York-based Second Circuit Court of Appeals held that a market research fax is not a TCPA advertisement. The Court found that even the inclusion of an honorarium for participating does not change the character of the fax. The decision, in a case captioned Katz v. Focus Forward, LLC, is the second in less than a year to validate this valuable telemarketing practice. 

How does the Katz decision affect TCPA advertisement faxes?

The Katz decision follows the Second Circuit’s prior decision in Kaye v. Merck & Co. The question in the two cases was the same: does a fax invitation to participate in market research for a nominal payment qualify as an advertisement for TCPA purposes? The facts of the Katz case are straightforward enough. Dr. Bruce Katz’s office received a fax from Focus Forward addressed to “nurse practitioners,” offering $150 to participate in a survey. Katz sued Focus Forward for violating the TCPA’s restriction on sending fax advertisements. 

Focus Forward argued that its motivation behind sending the subject fax survey was not commercial. This is crucial because motivation is a key factor in determining whether a fax is an advertisement. Focusing on the issue of motivation, the trial court agreed and entered judgment in Focus Forward’s favor. On appeal, the Second Circuit affirmed, citing the TCPA’s plain language defining an advertisement as a fax that advertises the availability of goods, services, or property. An invitation to participate in a market research survey does not advertise goods, services, or property. Therefore, the Court reasoned, such faxes do not violate the TCPA. 

Avoid TCPA litigation by hiring experienced telemarketing attorneys. 

While the Katz and Kaye decisions affirm the notion that a survey invitation is not an advertisement, another federal court, the Third Circuit Court of Appeals, has held to the contrary. This difference provides a useful example of how the TCPA evolves quickly, with its interpretation varying depending on which state you are litigating in. Trying to keep up with all these changes can be head-spinning. 

Keep your focus where it belongs: on running your business. Hire seasoned telemarketing attorneys to help you remain TCPA compliant. The attorneys at Klein Moynihan Turco have years of telemarketing law experience. They can help your business navigate the nuanced world of the TCPA, help keep your business TCPA compliant, and defend your business in the event of TCPA litigation. 

If you need assistance with updating your telemarketing practices or defending a TCPA lawsuit, email us at or call us at (212) 246-0900

The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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